Female inmates locked down in the Maricopa County Jail, Phoenix, Arizona, 1998

Back in 1998, Jan Lastocy was serving time for attempted embezzlement in a Michigan prison. Her job was working at a warehouse for a nearby men’s prison. She got along well with two of the corrections officers who supervised her, but she thought the third was creepy. “He was always talking about how much power he had,” she said, “how he liked being able to write someone a ticket just for looking at him funny.” Then, one day, he raped her.

Jan wanted to tell someone, but the warden had made it clear that she would always believe an officer’s word over an inmate’s, and didn’t like “troublemakers.” If Jan had gone to the officers she trusted, they would have had to repeat her story to the same warden. Jan was only a few months away from release to a halfway house. She was desperate to get out of prison, to return to her husband and children. So she kept quiet—and the officer raped her again, and again. There were plenty of secluded places in the huge warehouse, behind piles of crates or in the freezer. Three or four times a week he would assault her, from June all the way through December, and the whole time she was too terrified to report the attacks. Later, she would be tormented by guilt for not speaking out, because the same officer went on to rape other women at the prison. In a poem, Jan wrote:

These are a few of the reasons why prisoners fear reporting rape.
Fear of being written up and possibly losing good time.
Fear of retaliation.
Fear of feeling that no one will believe them.
Fear of feeling that no one really cares.

For all these reasons, a large majority of inmates who have been sexually abused by staff or by other inmates never report it.1 And corrections officials, with some brave exceptions, have historically taken advantage of this reluctance to downplay or even deny the problem. According to a recent report by the Bureau of Justice Statistics (BJS), a branch of the Department of Justice, there were only 7,444 official allegations of sexual abuse in detention in 2008, and of those, only 931 were substantiated. These are absurdly low figures. But perhaps more shocking is that even when authorities confirmed that corrections staff had sexually abused inmates in their care, only 42 percent of those officers had their cases referred to prosecution; only 23 percent were arrested, and only 3 percent charged, indicted, or convicted. Fifteen percent were actually allowed to keep their jobs.

How many people are really victimized every year? Recent BJS studies using a “snapshot” technique have found that, of those incarcerated on the days the surveys were administered, about 90,000 had been abused in the previous year, but as we have argued previously,2 those numbers were also misleadingly low. Finally, in January, the Justice Department published its first plausible estimates. In 2008, it now says, more than 216,600 people were sexually abused in prisons and jails and, in the case of at least 17,100 of them, in juvenile detention. Overall, that’s almost six hundred people a day—twenty-five an hour.

The department divides sexual abuse in detention into four categories. Most straightforward, and most common, is rape by force or the threat of force. An estimated 69,800 inmates suffered this in 2008.3 The second category, “nonconsensual sexual acts involving pressure,” includes 36,100 inmates coerced by such means as blackmail, offers of protection, and demanded payment of a jailhouse “debt.” This is still rape by any reasonable standard.

An estimated 65,700 inmates, including 6,800 juveniles, had sex with staff “willingly.” But it is illegal in all fifty states for corrections staff to have any sexual contact with inmates. Since staff can inflict punishments including behavioral reports that may extend the time people serve, solitary confinement, loss of even the most basic privileges such as showering, and (legally or not) violence, it is often impossible for inmates to say no.4 Finally, the department estimates that there were 45,000 victims of “abusive sexual contacts” in 2008: unwanted touching by another inmate “of the inmate’s buttocks, thigh, penis, breasts, or vagina in a sexual way.” Overall, most victims were abused not by other inmates but, like Jan, by corrections staff: agents of our government, paid with our taxes, whose job it is to keep inmates safe.

All the numbers we have cited count people who were abused, not instances of abuse. People raped behind bars cannot escape their attackers, though. They must live in constant fear, their trauma renewed every time they see their assailants. Between half and two thirds of those who claim sexual abuse in adult facilities say it happened more than once; previous BJS studies suggest that victims endure an average of three to five attacks each per year.5

We believe that the department’s estimate probably remains too low. It is based on extensive surveys conducted by the BJS in which inmates were able to report abuse anonymously. Some inmates probably fabricated such reports, creating “false positives,” and some who had been abused probably decided not to report it, creating “false negatives.” Since it is impossible to know how many errors of either kind there were, the department chose simply to take the BJS results at face value.

In our opinion, the surveys were effectively designed to discourage false reporting, which would usually be done with the intent of creating trouble for the accused perpetrator or in hopes of being moved to a different facility. The surveys therefore simply didn’t take names—of victims or perpetrators. (The surveys’ authors also devised a number of ways to check for and discount false claims.) On the other hand, inmates would be likely not to report real abuse from shame, or because it was too painful, or out of fear that those guaranteeing their anonymity could not be trusted—and no survey could be designed to overcome those considerations effectively. Moreover, the department’s estimate does not include the many people who are sexually abused in, for example, the Department of Homeland Security’s immigration detention facilities, in police lockups, or by their probation and parole officers.

Even the department’s estimate is of epidemic numbers, however. It shows that there is a human rights crisis in our own country. The people raped in our prisons are our fellow citizens, family members, and neighbors. And when they’re released, as 95 percent of them will be eventually, they bring their trauma home with them, back to our communities.

The notion that rape is inevitable in our prisons is, as the Justice Department says, “not only incorrect but incompatible with American values.” After all, the government has extraordinary control over the lives of people whom it locks up and keeps under surveillance every hour of every day. Preventing sexual abuse in detention is primarily a matter of management. The policies needed are, for the most part, straightforward: for example, considering characteristics that make an inmate especially vulnerable when deciding where to house him, such as homosexuality or a history of prior abuse. Well-run prisons have adopted such policies already, and their rates of sexual assault are dramatically lower than the national average. But for too long, too many facilities have failed to take these basic measures.

In 2003, seeking to address this disgraceful situation, both chambers of Congress unanimously passed the Prison Rape Elimination Act (PREA), a law that created a commission to study best practices and come up with national standards for preventing, detecting, and responding to the problem. This commission spent years consulting with corrections officials and other experts. Finally, in June 2009, it delivered its recommendations to Attorney General Eric Holder, who by law then had twelve months to revise them before formally issuing standards that would be nationally binding.

He missed that deadline. The estimate of 216,600 inmates sexually abused in a year comes from a draft of the proposed final standards, which Holder has only now published for public comment—a step that is still far from the last. (The public comment period will run until April 4, 2011. People wishing to comment on the Justice Department’s proposals can learn how on our organization’s website, www.justdetention.org.) Moreover, the standards that the department has proposed, taken all together, fall far short of the commission’s recommendations.

There are some specific points on which the department has gone beyond the standards advocated by the commission. To mention a few examples, while the commission would have required that physical exams be made available to abused inmates whenever penetration had occurred, the department has expanded this provision, making the exams available whenever they are deemed “evidentiarily or medically appropriate.” It has also decided that inmates who have suffered sexual abuse should now be given timely access to legally available “pregnancy-related medical services” and prophylaxis for sexually transmitted infections.

The department also intends to recommend lifting the ban on use of funds available under the Victims of Crime Act for those who have been abused in detention, which will make it much more possible for community rape crisis centers to help inmates. And it has expanded the commission’s training requirements, adding, for the first time, that corrections staff must now receive instruction on appropriate professional boundaries and on effective and professional communication with lesbian, gay, bisexual, transgender, and intersex (persons whose biological sex is ambiguous) inmates—obvious enough measures to take, but extremely important ones.

The department has proposed a new standard on housing decisions for transgender and intersex inmates. The vast majority of male-to-female transgender inmates are simply placed in men’s facilities. There they are perhaps the most vulnerable of all groups, often raped repeatedly. Now, for the first time, the department is requiring that their housing be considered on an individual basis. This is enormous, indeed life-saving progress.6

However, although such points are to be applauded in the attorney general’s draft of the standards, it is deeply flawed and should be amended one more time. Again, a few examples of the problems will have to stand in for a much longer list.

To begin with, although the department writes that “protection from sexual abuse should not depend on where an individual is incarcerated: It must be universal,” its standards now will not apply to immigration detention facilities—even though the history of the Prison Rape Elimination Act clearly shows that it was intended to cover immigration detention.7 This is an essential point, because immigration facilities are rife with abuse.8 The people housed in them, terrified of deportation and often sharing no language with their jailers, tend to be even more reluctant to file reports than most criminal detainees, and so are particularly vulnerable.

Similarly, the department has, against the commission’s recommendation, decided that its standards should not apply to probation and parole officers (except those working in community confinement facilities such as halfway houses), even though probation and parole officers sometimes extort sex by taking advantage of their extraordinary ability to send people to prison; even though many inmates wait to tell anyone what they’ve suffered until release, and then frequently turn to their parole officers, who would therefore benefit greatly from the specialized training about sexual abuse that the standards require for other corrections staff.9

Darcy Padilla

Inmates in an isolation unit for HIV-positive convicts at the California Medical Facility in Vacaville, 1990; photograph by Darcy Padilla, winner of the 2010 W. Eugene Smith Award in Humanistic Photography

The Prison Litigation Reform Act of 1996, which was written with the explicit purpose of limiting inmates’ access to judicial redress, insists that prisoners must successfully follow the grievance procedures of the facilities where they were abused before seeking help from a judge. Many prison systems have harsh requirements about how quickly after an assault complaints must be filed. Such deadlines often take no account of the likelihood that a victim will still be in shock or in the hospital when that time expires, or of many inmates’ very reasonable fear of retaliation if they do file a grievance within their facilities.10 Recognizing this, the commission tried to ensure that reasonable access to the courts would be restored to victims of prisoner rape. But the Justice Department’s draft requires facilities to adopt grievance policies like the one used by the federal Bureau of Prisons—which has even stricter deadlines than those currently used in eighteen states, giving inmates only twenty days to file complaints after an assault, and an additional ninety-day extension only if they are able to document trauma.11 In many places, therefore, this PREA standard might have the perverse effect of further limiting recourse for people raped in prison.

The department is also weakening one of the commission’s recommendations by allowing adult facilities to place victims or those at high risk in segregated, isolated housing for ninety days, even against their will, in order to prevent further assaults. But “solitary confinement” is more commonly used as punishment; it can have devastating psychological effects, especially to people already traumatized. Such segregation has been used with particular frequency against gay inmates in the past, again purportedly for their protection, but often against their will and when no abuse has taken place. Some inmates request segregated housing for their own protection, and they should have that right. No one should be subjected to it involuntarily, however, simply for reporting abuse. The risk of such isolation now contributes to many inmates’ reluctance to file grievances. When a victim and his assailant must be separated, it would be more appropriate to isolate the abuser.

The department has essentially eliminated the commission’s requirement that inmates be able to report abuse confidentially to people unaffiliated with their facilities. Like the commission, it gives victims access to an advocate during the investigation process; unlike the commission, though, it does not require these advocates to be outsiders, but would allow them to be “qualified”12 employees of the facility where the abuse took place. Here we suspect that the department may have given in to pressure from corrections officials who fear opening their facilities to outside scrutiny. But if the department is serious about wanting to prevent sexual abuse in detention, it must open prisons to outsiders. It cannot allow them to continue policing themselves.

Much more difficult problems emerge when the Justice Department considers supervision of inmates by officers of the opposite sex. Since this can lead to elevated rates of abuse, the commission recommended standards limiting staff’s ability to view inmates of the opposite sex while undressed or to touch them during searches, except in emergencies—recommendations that still came far below international norms. The department has weakened them even further. It bans officers from performing strip searches and visual body-cavity searches on inmates of the opposite sex, except in emergencies, but not from pat-searching them, or viewing them in the shower or on the toilet during cell checks.

The department is worried that a ban on cross-gender pat-searches might mean facilities would have to fire many of their female employees and hire more men, which would be very expensive and perhaps illegal. And it maintains (something we agree with) that it can be beneficial for inmates to have staff of the opposite sex in their facilities. The problem, though, is that a significant majority of staff-on-inmate sexual abuse is cross-gender—women abusing men, as well as men abusing women—and much of it starts during (but then is not limited to) pat-searches.

But it is possible to have both male and female employees available in a facility when nonemergency searches are required so that pat-searches could be conducted by members of the same sex. There are also simple ways to limit the incidental viewing of inmates on the toilet, by, for example, installing small privacy screens, or where that’s impractical, allowing inmates to hang a towel from the bars of their cells for a few minutes. In any case, the department should not give higher priority to the employment concerns of corrections staff than to an essential purpose of their jobs, which is ensuring the safety of inmates in their care.

To have any hope of keeping inmates safe, staff must know what is happening to them. The department’s standard on supervision, which addresses both staffing levels and video monitoring, is one of its most important. Yet neither the department nor, before it, the commission has defined what would be adequate supervision. (It does not, for example, point out where recording cameras are needed to detect rape in such places as closets or require extra monitoring for inmates with known histories of sexual assaults.) This is a terribly disappointing failure after seven years of work.13

Even more troubling is the lack of any mechanism for holding facilities accountable when they do not give inmates the supervision that is needed. All the department proposes is that corrections agencies be responsible for writing annual supervision plans for each of their facilities; they must also devise backup plans in case the first plans cannot be met. But even after deciding for themselves what would be sufficient, agencies face no penalties, either for failing to provide adequate supervision or for failing to implement their backup plans.14

None of the department’s standards, in fact, will be meaningful unless sufficient mechanisms exist to enforce them. Unfortunately, the department has not yet reached decisions on many important aspects of monitoring compliance—raising the possibility that it might ultimately issue weak auditing standards without even submitting them for public comment first. Indeed, the department has hinted at such a possibility, by proposing that the standards not require true independence from those who judge compliance: that instead, audits could be conducted by “an internal inspector general or ombudsperson who reports directly to the agency head or to the agency’s governing board” (emphasis added). Anyone answering directly to the agency, though, could easily be pressured to minimize or ignore certain conditions, or prevented from fully examining conditions should the agency not provide sufficient funding.15

As is abundantly clear from the Justice Department’s draft, its primary consideration in weakening the standards was expense. The government must fulfill its human rights obligations: this is a constitutional and moral imperative to which budgetary considerations are secondary, especially when, as the department affirms here, the measures in question will not “have [a significant] effect on the national economy.”16 On the other hand, PREA stipulated that no standards should be issued “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities,” and the department was obligated to take that seriously.17

Given the scope of the standards, it was not only appropriate but legally mandated that the department conduct a cost-benefit analysis of the standards’ projected financial impact, which it has done.18 It projected costs not only for its own standards but for their “most obvious alternative”—e.g., the commission’s recommendations—and found that its proposals would require about $544 million per year in ongoing costs, or, it believes, about a tenth of the commission’s. This last assertion is a dubious one, because the cost projections for the commission’s recommendations are deeply questionable, but it does at least suggest the extent to which the department has diluted the commission’s standards. Having also projected the financial benefits of preventing the various kinds of sexual abuse in detention, the department then determined that its proposed standards would be fiscally justified if they reduced the number of victims by only about 3 percent19—something it is so confident they would achieve that the department simply asserts it. On that point, so far as it goes, we more than share the department’s confidence.

The assumptions and valuations the department has made in estimating the financial benefits of preventing prisoner rape are extremely conservative.20 By erring on the side of great caution in its projections of those benefits, and then showing that they would still outweigh costs even if the standards saved only 3 percent of all victims, the department has made it very difficult for anyone to complain about its proposals on the basis of extravagance. But cost-benefit analysis is not meant to be a tool with which bureaucrats and political appointees protect themselves from criticism; it is meant to help them maximize the public good achieved through their regulations. To have used it responsibly for that purpose, though, the department would have had to make some effort to estimate how many inmates would in fact be spared abuse by the standards. Its assertion that the standards could reduce sexual abuse in detention by 3 percent is not good enough. It is clear to anyone who has studied them that they could do that, and much more than that. The question is, how much more?

Since the standards are an effort to codify innovations and best practices of facilities that have already had some success in reducing their rates of sexual abuse, we propose looking more closely at the last BJS study of sexual abuse in adult facilities, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–09.21 This study from August 2010 was based on surveys administered at 167 prisons and 286 jails. If we take the average rates of abuse in the best half of those facilities, and then imagine that these rates could become the national averages, that would give us an estimate of possible gains that was both realistic and conservative, based on what has already been accomplished across the country.22 The top half of all facilities have made their achievements without explicitly stated standards; there is still plenty of room for them to improve, and every reason to expect that they will once the standards are in place, though probably not as dramatically as the bottom half of facilities. In our opinion, if the department issues strong standards, it wouldn’t be unrealistic to expect that the national rates of abuse could sink to those of the best quarter or even the best tenth of all facilities.

But even if the standards allowed all facilities to do only as well as half do now, they would be saving not 3 percent of the people sexually abused in detention, but over 53 percent.23 This means that had the standards been in place in 2008, instead of the 199,500 people who the department says were abused in adult prisons and jails, there would have been about 93,100. More than 100,000 adults (as well as many thousands of children) would have been saved an experience from which few recover emotionally.

If weak standards would be justified by preventing 3 percent of abuse, strong ones would be resoundingly vindicated by what is in fact possible. The department could do much more than it is now proposing while remaining fiscally responsible. Many of its proposals can be improved at minimal cost. Other necessary measures will carry a significant price, but we do not believe they will be nearly as expensive as the department has estimated. Even if they were, however, they would be warranted by the immense good they will do.

The Justice Department still has work to do on the standards, but President Obama should urge it to move more swiftly. In just the time it has taken to read this article, several more people like Jan Lastocy have been raped behind bars, and more than half of them could have been saved if the standards were in place. The department now estimates that it will finish its process by the end of 2011, a year and a half after its statutory deadline passed. But well over 100,000 inmates have already been sexually abused while in the government’s care since Holder missed his deadline, and if it takes him until the end of the year to issue standards, there will be nearly 200,000 more.

—February 23, 2011

1
As the Bureau of Justice Statistics found in a recent study, "between 69% and 82% of inmates who reported sexual abuse in response to the survey stated that they had never reported an incident to correctional managers." ↩

3
As a point of comparison, it may be worth noting that the latest National Crime Victimization Survey (NCVS) by the BJS, which excludes "Armed Forces personnel living in military barracks and institutionalized persons, such as correctional facility inmates," estimates that in 2009 there were 125,910 instances of rape and sexual assault in the US. However, several caveats are necessary here: first, that the definitions of these crimes used in this study are not the same as those used in the surveys of prisoner rape; second, that the 2009 number was down significantly from the 2008 NCVS finding of 203,830 rapes and sexual assaults in the free community; third, as the BJS says in the 2009 NCVS, "The measurement of rape and sexual assault represents one of the most serious challenges in the field of victimization research." The 2009 National Crime Victimization Survey is available at bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf. ↩

4
As the Justice Department acknowledges, "the power imbalance in correctional facilities is such that it is impossible to know if an incarcerated person truly ‘consented' to sexual activity with staff." ↩

5
Of juvenile detainees reporting sexual abuse by other inmates, 81 percent said it happened more than once. ↩

6
According to the National Prison Rape Elimination Commission report, suicide is considered by one third to one half of rape victims in "non-correctional settings"; 17 to 19 percent attempt it. And as the department says of rape, "Such acts are particularly damaging in the correctional environment, where the power dynamic is heavily skewed against victims and recourse is often limited." ↩

7
Two federal entities charged with implementing parts of PREA, the commission and the BJS, have both recognized immigration as clearly within their mandate; statements in the House Judiciary Committee's report on the bill confirm that it was meant to cover civil as well as criminal detainees; and the late Senator Edward Kennedy, one of PREA's sponsors and its main champion in Congress, publicly expressed his particular gratification that PREA would apply to immigration detention. PREA itself defines "prison" for the purposes of the law as "any confinement facility of a Federal, State, or local government." And as a former adviser to the head of the Department of Homeland Security (DHS) acknowledged, immigration facilities (all of which are run by or contracted from the DHS) need new policies like the standards.

The department's argument for not applying its standards to DHS immigration facilities, we presume, is that PREA didn't stipulate that the standards should apply to DHS facilities. But when PREA was first drafted, in 2002, there was no Department of Homeland Security; the Immigration and Naturalization Service, which did exist then, was a division of the Department of Justice, so the department's standards would have applied to its facilities automatically. While DHS had been established by the time PREA was passed, the scope of its responsibilities for housing immigration detainees was not yet clear. ↩

8
See Human Rights Watch, "Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention," August 25, 2010. ↩

9
By 2000, about as many people were being annually sent to prison in the US for parole violations as had been sent to prison for any reason in 1980. (Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010), p. 93.) According to the BJS, more than five million people were on probation or parole in 2009. The sorts of parole violations that can get someone sent back to prison include failing to maintain employment, failing a drug test, and missing an appointment with a parole officer—all of which, however, would be typical symptoms of the kind of trauma associated with prior sexual abuse. Thus, unless probation and parole officers can recognize and take into account such trauma, people who have been sexually abused in detention are at heightened risk of being sent back to prison after their release. There, because prior abuse dramatically increases the probability of future abuse, they will very likely face more sexual assaults. ↩

10
About 17 percent of those raped in prison suffer serious additional injuries—knife wounds, broken bones, concussions—and they must often be hospitalized. Sexual abuse of any kind can also cause or exacerbate serious mental and emotional problems: 30 to 40 percent of inmates suffer from such disabilities even prior to any abuse—which, of course, also makes them particularly vulnerable to being abused. And as the department says, "Retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a real and serious threat in correctional facilities. Fear of retaliation, such as being subjected to harsh or hostile conditions, being attacked by other inmates, or suffering harassment from staff, prevents many inmates and staff from reporting sexual abuse, which in turn makes it difficult to keep facilities safe and secure." An inmate who has been sexually abused typically feels a sense of panic, extreme isolation, and vulnerability; it is very difficult for such a person to trust any member of the facility's staff when staff have already failed to protect him (or, indeed, when it was staff who abused him). ↩

11
Deadlines are not the only problems inmates face in trying to comply with the grievance procedures of their facilities. Many corrections agencies across the country have taken advantage of the Prison Litigation Reform Act to avoid responsibility for abuses within their walls by creating deliberately confusing or even contradictory grievance requirements. Thus, for example, two recent court cases in Iowa and New York arose after female prisoners followed advice given in agency materials and complained about sexual abuse to officials whom they trusted; but neither the case manager turned to in Iowa nor the inspector general in New York had a role in the official grievance systems of those states, and therefore the courts decided that judicial review was procedurally barred in each case. Such procedural traps and labyrinths are particularly challenging for the country's many illiterate and mentally ill inmates. The department should insist that all grievance procedures be simple, clear, and possible to follow. ↩

12
Beyond failing to recognize the important reasons why this advocate should be an outsider, the department's standard gives no binding criteria by which a staff member would be deemed qualified. Its discussion of what it believes might be required for such qualification suggests that it would accept much more limited training than community rape crisis centers typically demand. Moreover, the department has no requirement that staff members go through any screening in order to become qualified, raising the dangerous possibility that staff perpetrators of sexual abuse might serve as victim advocates. ↩

13
Complicated though this question is, some elements of its solution are clear enough. To mention only a few points, recording cameras should be placed in a facility's known blind spots, including places not designated for inmates but where an abusive staff member could take them, such as closets; similarly, places in a facility where sexual abuse has been known to occur should be monitored, either directly by staff or with cameras; there should be direct "sight and sound supervision" of inmates with a known history of sexual predation when they are in common areas, shared cells, or otherwise interacting with fellow inmates; and the extent to which individual staff members are able to spend time alone with inmates should be minimized. More such suggestions will be forthcoming in the public comment that Just Detention International intends to make in response to the department's draft standards, and will be available on the organization's website. ↩

14
The department writes that auditors would probably not "be able to determine the appropriate staffing level in the limited amount of time available to conduct an audit." Perhaps not, and perhaps asking auditors to create such plans would be too much, but they should certainly be allowed to decide when supervision is inadequate. They must be allowed to reject the plans that agencies have made for their own facilities, and to include failures to provide adequate supervision or to implement backup plans in their public reports. ↩

15
In addition to being truly independent and adequately funded, auditors must have the power to visit every detention facility, unannounced and at any time; to examine and copy documents; to hold private, confidential conversations with all inmates and staff; and to have their findings on noncompliance and recommendations for improvement made publicly available. The standards should require regular document review of the policies and practices of every facility. Ideally, auditors would visit every facility at least every three years. If this isn't possible due to the immense number of corrections facilities nationwide, the standards should require "for cause" audits of facilities where serious problems have been identified, and also the possibility of random audits for all facilities, so that all have proper incentives to comply with the standards, and so that problems can be identified and addressed before becoming serious. The department's proposals guarantee none of these things. ↩

16
The sentence reads, "The Department does not believe that these national standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services." ↩

17
However, as the department says, "Congress understood that such standards were likely to require Federal, State, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing the standards. Given the statute's aspiration to eliminate prison rape in the United States, Congress expected that some level of compliance costs would be appropriate and necessary." ↩

18
Cost-benefit analysis, as the name suggests, is an effort to quantify both the price and the measurable savings or positive monetized gains associated with a proposed regulation. Ideally it is used to maximize the social good; at a minimum (and perhaps more commonly in practice) it is used to ensure that the achievements of any regulation aren't outweighed by its expense. For a more complete discussion of cost-benefit analysis and its applicability to the department's efforts to prevent sexual abuse in detention, see David Kaiser and Lovisa Stannow, "Prison Rape: Eric Holder's Unfinished Business," NYRblog, August 26, 2010, available at http://www.nybooks.com/blogs/nyrblog/2010/aug/26/prison-rape-holders-unfinished-business/. See also Institute for Policy Integrity, Letter to Robert Hinchman, dated May 10, 2010, available at http://policyintegrity.or/documents/IPI_PREA_Comments_-_FINAL.pdf, and Institute for Policy Integrity, Memo to DOJ PREA Working Group and Office of Information and Regulatory Affairs dated September 10, 2010, available at policyintegrity.org/documents/PREA_Memorandum_September_2010.pdf. ↩

19
More precisely, the department says that "the proposed standards would have to yield approximately a 2.3–3.5 % reduction from the baseline in the average annual prevalence of prison rape for the ongoing costs and the monetized benefits to break even, without regard to the value of the nonmonetary benefits." For the commission's standards to "break even" with the department's projection of their costs, the department estimates that they would have to reduce sexual abuse in detention by 22 percent. ↩

20
For example, the department has assigned a value to saving an inmate from "nonconsensual sexual acts involving pressure" that is only one fifth the better-established benefit of preventing rape by force, suggesting a similar differential in the "cost" of these crimes. This seems especially low considering that mental trauma and loss of quality of life account for 85 percent of the department's estimate of the "cost" of forcible rape; we believe that the psychological damage inflicted by the two kinds of abuse is similar. The value it assigns to preserving an adult from "abusive sexual contact" is only $375; for a juvenile, it is $500.

More generally, the department has not attempted to quantify all the measurable benefits of preventing sexual abuse in detention. For example, it writes that "sexual assault in prison often leads to long-term trauma, especially if victims are not treated properly in the immediate aftermath of their victimization. When victims return to their communities, this trauma frequently results in an inability to maintain stable employment. The standards will improve the reentry of offenders into society after their incarceration, reducing the likelihood that they will require public assistance (such as welfare, disability benefits, housing vouchers, food stamps) and other forms of governmental support upon their reentry." Although the benefits mentioned in this passage are difficult ones to measure, they are the sorts of things normally thought susceptible to quantification in cost-benefit analysis.

The department also writes that "implementation of the standards will enhance public safety by reducing the likelihood that inmates released from prison and jail each year will commit crimes (especially violent crimes) after their release.... Reducing recidivism could potentially save society and government tens of millions of dollars per year by avoiding the economic and human costs of crime, the cost of investigating and prosecuting crimes, and the considerable expense of incarceration itself ($22,600 per prisoner per year, or $62 per day, as of 2001)." But it doesn't attempt to include quantification of these benefits in its analysis, either. ↩

22
Nationally, 4.4 percent of prison inmates are sexually abused every year, as are 3.1 percent of jail inmates. In the better half of all facilities, 2.069 percent of prisoners are abused, and 1.436 percent of jail inmates. ↩

23
To reach this number, we took the rates of abuse from the better-performing 84 prisons in the BJS study and averaged them; we did the same for the better-performing 143 jails. (The figures we reached this way are not weighted averages: we did not try to account for the size of each different facility or the number of inmates who responded to the survey in each.) Then, for both prisons and jails, we divided the rate of abuse for the top half of facilities by the overall rate found by the BJS; we multiplied the numbers this produced by the department's estimate of the numbers of victims in prisons and jails to reach our absolute numbers. We did not attempt to perform the same calculation for juvenile facilities out of concern that the more limited data we have there might not support such an exercise; however, we are confident that strong standards could make an enormous difference in juvenile facilities, just as they would in adult prisons and jails. ↩

1

As the Bureau of Justice Statistics found in a recent study, “between 69% and 82% of inmates who reported sexual abuse in response to the survey stated that they had never reported an incident to correctional managers.” ↩

As a point of comparison, it may be worth noting that the latest National Crime Victimization Survey (NCVS) by the BJS, which excludes “Armed Forces personnel living in military barracks and institutionalized persons, such as correctional facility inmates,” estimates that in 2009 there were 125,910 instances of rape and sexual assault in the US. However, several caveats are necessary here: first, that the definitions of these crimes used in this study are not the same as those used in the surveys of prisoner rape; second, that the 2009 number was down significantly from the 2008 NCVS finding of 203,830 rapes and sexual assaults in the free community; third, as the BJS says in the 2009 NCVS, “The measurement of rape and sexual assault represents one of the most serious challenges in the field of victimization research.” The 2009 National Crime Victimization Survey is available at bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf. ↩

4

As the Justice Department acknowledges, “the power imbalance in correctional facilities is such that it is impossible to know if an incarcerated person truly ‘consented’ to sexual activity with staff.” ↩

5

Of juvenile detainees reporting sexual abuse by other inmates, 81 percent said it happened more than once. ↩

6

According to the National Prison Rape Elimination Commission report, suicide is considered by one third to one half of rape victims in “non-correctional settings”; 17 to 19 percent attempt it. And as the department says of rape, “Such acts are particularly damaging in the correctional environment, where the power dynamic is heavily skewed against victims and recourse is often limited.” ↩

7

Two federal entities charged with implementing parts of PREA, the commission and the BJS, have both recognized immigration as clearly within their mandate; statements in the House Judiciary Committee’s report on the bill confirm that it was meant to cover civil as well as criminal detainees; and the late Senator Edward Kennedy, one of PREA’s sponsors and its main champion in Congress, publicly expressed his particular gratification that PREA would apply to immigration detention. PREA itself defines “prison” for the purposes of the law as “any confinement facility of a Federal, State, or local government.” And as a former adviser to the head of the Department of Homeland Security (DHS) acknowledged, immigration facilities (all of which are run by or contracted from the DHS) need new policies like the standards.

The department’s argument for not applying its standards to DHS immigration facilities, we presume, is that PREA didn’t stipulate that the standards should apply to DHS facilities. But when PREA was first drafted, in 2002, there was no Department of Homeland Security; the Immigration and Naturalization Service, which did exist then, was a division of the Department of Justice, so the department’s standards would have applied to its facilities automatically. While DHS had been established by the time PREA was passed, the scope of its responsibilities for housing immigration detainees was not yet clear. ↩

8

See Human Rights Watch, “Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention,” August 25, 2010. ↩

9

By 2000, about as many people were being annually sent to prison in the US for parole violations as had been sent to prison for any reason in 1980. (Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010), p. 93.) According to the BJS, more than five million people were on probation or parole in 2009. The sorts of parole violations that can get someone sent back to prison include failing to maintain employment, failing a drug test, and missing an appointment with a parole officer—all of which, however, would be typical symptoms of the kind of trauma associated with prior sexual abuse. Thus, unless probation and parole officers can recognize and take into account such trauma, people who have been sexually abused in detention are at heightened risk of being sent back to prison after their release. There, because prior abuse dramatically increases the probability of future abuse, they will very likely face more sexual assaults. ↩

10

About 17 percent of those raped in prison suffer serious additional injuries—knife wounds, broken bones, concussions—and they must often be hospitalized. Sexual abuse of any kind can also cause or exacerbate serious mental and emotional problems: 30 to 40 percent of inmates suffer from such disabilities even prior to any abuse—which, of course, also makes them particularly vulnerable to being abused. And as the department says, “Retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a real and serious threat in correctional facilities. Fear of retaliation, such as being subjected to harsh or hostile conditions, being attacked by other inmates, or suffering harassment from staff, prevents many inmates and staff from reporting sexual abuse, which in turn makes it difficult to keep facilities safe and secure.” An inmate who has been sexually abused typically feels a sense of panic, extreme isolation, and vulnerability; it is very difficult for such a person to trust any member of the facility’s staff when staff have already failed to protect him (or, indeed, when it was staff who abused him). ↩

11

Deadlines are not the only problems inmates face in trying to comply with the grievance procedures of their facilities. Many corrections agencies across the country have taken advantage of the Prison Litigation Reform Act to avoid responsibility for abuses within their walls by creating deliberately confusing or even contradictory grievance requirements. Thus, for example, two recent court cases in Iowa and New York arose after female prisoners followed advice given in agency materials and complained about sexual abuse to officials whom they trusted; but neither the case manager turned to in Iowa nor the inspector general in New York had a role in the official grievance systems of those states, and therefore the courts decided that judicial review was procedurally barred in each case. Such procedural traps and labyrinths are particularly challenging for the country’s many illiterate and mentally ill inmates. The department should insist that all grievance procedures be simple, clear, and possible to follow. ↩

12

Beyond failing to recognize the important reasons why this advocate should be an outsider, the department’s standard gives no binding criteria by which a staff member would be deemed qualified. Its discussion of what it believes might be required for such qualification suggests that it would accept much more limited training than community rape crisis centers typically demand. Moreover, the department has no requirement that staff members go through any screening in order to become qualified, raising the dangerous possibility that staff perpetrators of sexual abuse might serve as victim advocates. ↩

13

Complicated though this question is, some elements of its solution are clear enough. To mention only a few points, recording cameras should be placed in a facility’s known blind spots, including places not designated for inmates but where an abusive staff member could take them, such as closets; similarly, places in a facility where sexual abuse has been known to occur should be monitored, either directly by staff or with cameras; there should be direct “sight and sound supervision” of inmates with a known history of sexual predation when they are in common areas, shared cells, or otherwise interacting with fellow inmates; and the extent to which individual staff members are able to spend time alone with inmates should be minimized. More such suggestions will be forthcoming in the public comment that Just Detention International intends to make in response to the department’s draft standards, and will be available on the organization’s website. ↩

14

The department writes that auditors would probably not “be able to determine the appropriate staffing level in the limited amount of time available to conduct an audit.” Perhaps not, and perhaps asking auditors to create such plans would be too much, but they should certainly be allowed to decide when supervision is inadequate. They must be allowed to reject the plans that agencies have made for their own facilities, and to include failures to provide adequate supervision or to implement backup plans in their public reports. ↩

15

In addition to being truly independent and adequately funded, auditors must have the power to visit every detention facility, unannounced and at any time; to examine and copy documents; to hold private, confidential conversations with all inmates and staff; and to have their findings on noncompliance and recommendations for improvement made publicly available. The standards should require regular document review of the policies and practices of every facility. Ideally, auditors would visit every facility at least every three years. If this isn’t possible due to the immense number of corrections facilities nationwide, the standards should require “for cause” audits of facilities where serious problems have been identified, and also the possibility of random audits for all facilities, so that all have proper incentives to comply with the standards, and so that problems can be identified and addressed before becoming serious. The department’s proposals guarantee none of these things. ↩

16

The sentence reads, “The Department does not believe that these national standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services.” ↩

17

However, as the department says, “Congress understood that such standards were likely to require Federal, State, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing the standards. Given the statute’s aspiration to eliminate prison rape in the United States, Congress expected that some level of compliance costs would be appropriate and necessary.” ↩

18

Cost-benefit analysis, as the name suggests, is an effort to quantify both the price and the measurable savings or positive monetized gains associated with a proposed regulation. Ideally it is used to maximize the social good; at a minimum (and perhaps more commonly in practice) it is used to ensure that the achievements of any regulation aren’t outweighed by its expense. For a more complete discussion of cost-benefit analysis and its applicability to the department’s efforts to prevent sexual abuse in detention, see David Kaiser and Lovisa Stannow, “Prison Rape: Eric Holder’s Unfinished Business,” NYRblog, August 26, 2010, available at http://www.nybooks.com/blogs/nyrblog/2010/aug/26/prison-rape-holders-unfinished-business/. See also Institute for Policy Integrity, Letter to Robert Hinchman, dated May 10, 2010, available at http://policyintegrity.or/documents/IPI_PREA_Comments_-_FINAL.pdf, and Institute for Policy Integrity, Memo to DOJ PREA Working Group and Office of Information and Regulatory Affairs dated September 10, 2010, available at policyintegrity.org/documents/PREA_Memorandum_September_2010.pdf. ↩

19

More precisely, the department says that “the proposed standards would have to yield approximately a 2.3–3.5 % reduction from the baseline in the average annual prevalence of prison rape for the ongoing costs and the monetized benefits to break even, without regard to the value of the nonmonetary benefits.” For the commission’s standards to “break even” with the department’s projection of their costs, the department estimates that they would have to reduce sexual abuse in detention by 22 percent. ↩

20

For example, the department has assigned a value to saving an inmate from “nonconsensual sexual acts involving pressure” that is only one fifth the better-established benefit of preventing rape by force, suggesting a similar differential in the “cost” of these crimes. This seems especially low considering that mental trauma and loss of quality of life account for 85 percent of the department’s estimate of the “cost” of forcible rape; we believe that the psychological damage inflicted by the two kinds of abuse is similar. The value it assigns to preserving an adult from “abusive sexual contact” is only $375; for a juvenile, it is $500.

More generally, the department has not attempted to quantify all the measurable benefits of preventing sexual abuse in detention. For example, it writes that “sexual assault in prison often leads to long-term trauma, especially if victims are not treated properly in the immediate aftermath of their victimization. When victims return to their communities, this trauma frequently results in an inability to maintain stable employment. The standards will improve the reentry of offenders into society after their incarceration, reducing the likelihood that they will require public assistance (such as welfare, disability benefits, housing vouchers, food stamps) and other forms of governmental support upon their reentry.” Although the benefits mentioned in this passage are difficult ones to measure, they are the sorts of things normally thought susceptible to quantification in cost-benefit analysis.

The department also writes that “implementation of the standards will enhance public safety by reducing the likelihood that inmates released from prison and jail each year will commit crimes (especially violent crimes) after their release…. Reducing recidivism could potentially save society and government tens of millions of dollars per year by avoiding the economic and human costs of crime, the cost of investigating and prosecuting crimes, and the considerable expense of incarceration itself ($22,600 per prisoner per year, or $62 per day, as of 2001).” But it doesn’t attempt to include quantification of these benefits in its analysis, either. ↩

Nationally, 4.4 percent of prison inmates are sexually abused every year, as are 3.1 percent of jail inmates. In the better half of all facilities, 2.069 percent of prisoners are abused, and 1.436 percent of jail inmates. ↩

23

To reach this number, we took the rates of abuse from the better-performing 84 prisons in the BJS study and averaged them; we did the same for the better-performing 143 jails. (The figures we reached this way are not weighted averages: we did not try to account for the size of each different facility or the number of inmates who responded to the survey in each.) Then, for both prisons and jails, we divided the rate of abuse for the top half of facilities by the overall rate found by the BJS; we multiplied the numbers this produced by the department’s estimate of the numbers of victims in prisons and jails to reach our absolute numbers. We did not attempt to perform the same calculation for juvenile facilities out of concern that the more limited data we have there might not support such an exercise; however, we are confident that strong standards could make an enormous difference in juvenile facilities, just as they would in adult prisons and jails. ↩